Bill C-21 opens up complaint processes against federal and First Nations governments

Since its application in 1977, the Canadian Human Rights Act has pledged to uphold the principle that “all individuals should have an opportunity equal with other individuals without being hindered in or prevented from doing so by discriminatory practices.” Until last June, however, the Act included a special provision, Section 67, which restricted the right to file claims of discrimination from First Nations peoples.

“For thirty-five years, people living under the Indian Act were not able to avail themselves of recourse to justice when they felt themselves to be victims of discrimination in many matters of their daily lives,” said David Gollob, communications director for the Canadian Human Rights Commission, in an interview with The Daily.

The Indian Act is a broad piece of legislation that affords First Nations communities the right to a certain level of autonomy on their lands, and determines the relationship between Aboriginal citizens living on reservations and the federal government. First drafted in 1876, it has broad implications in Aboriginal law. According to then-Justice Minister Ron Bassford, Section 67 was included in the Human Rights Act in order to avoid potential conflict between the two pieces of legislation. Its implication was that anyone living or working on an Indian Reservation was not legally able to pursue discrimination claims against First Nations governments under the Human Rights Act if the discrimination was related to the Indian Act. It also prevented complaints of discrimination against the Indian Act itself.

“This was recognized by successive governments as an anomaly that needed to be rectified,” said Gollob. “The [Commission] has been calling for the repeal of Section 67 for many years, and the United Nations also echoed this need to end what has been a historical injustice of not giving all people living in Canada the same human rights protections.”

The House of Commons passed Bill C-21 in 2008, allowing First Nations communities immediate access to the complaints process against the federal government, and affording First Nations governments a three year transitional period to allow for possible complaints against them. The Bill did not come into full effect until this past June, when the transition period ended.

Post-repeal, the Commission – through its National Aboriginal Initiative – had been working to “understand all the implications of the act as it regards First Nations people” said Gollob.

Sherri Helgason, director of the Initiative, said that the role of the commission “is to accept complaints where complaints are filed.”

“We also have an education role, a role in expanding knowledge and identifying policy or systemic issues that could be problematic, with the goal of reducing, or eradicating, discrimination,” she continued.

Helgason explained that the application of Bill C-21 on First Nations reserves has the potential to address issues of inequality, including the division of matrimonial property.

“From a human rights perspective, we did identify that the absence of regimes or laws that would allow for equitable distribution of marital assets was a problem,” said Helgason.

Already, cases have been brought to court challenging certain aspects of the Indian Act that some individuals living under it perceive to be discriminatory.

Gollob described one case in particular which “could have a very significant impact on the quality of life and quality of services” on First Nations reserves.

A joint complaint brought forth by the First Nations Child and Family Caring Society of Canada and the Society of First Nations, currently working its way through the court system, reveals the amount of state funding available to First Nations children in need of intervention by child welfare services is less than what is available to services for children living off-reserve.

“This is a discriminatory practice,” Gollob asserts. “It’s going to be a very important case in that it will help shape the impact of the inclusion of First Peoples under the Canadian Human Rights Act.”

Attempts to contact representatives of First Nations governments for comment, including the Assembly of First Nations and the Grand Council of the Crees, could not be reached at the time of press.

A previous version article stated that Sherri Helgason is the Director of Communications for the National Aboriginal Initiative. She is in fact the Director. The article subhead incorrectly described the changes to the complaint processes under Bill C-21. The subhead has been altered to accurately describe the processes. The Daily regrets the errors.

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